This fall California voters will decide whether to legalize possession and sale of small amounts of marijuana by persons over 21.

The language of the initiative may be found here. Essentially, the law would legalize the possession and sale of less than one ounce of marijuana by persons over the age of 21. Other provisions in the law would require the licensing of sellers of marijuana, and permit taxation on sales of the drug.

Judge Ronald B. Leighton of the Western District of the State of Washington has ordered the Air Force to reinstate Major Margaret Witt. His ruling is available here, and is described below.

Major Witt, a flight nurse in the Air Force, was discharged from the military service because she is a lesbian. Judge Leighton originally decided against Major Witt. He found that the federal law commonly known as "Don't Ask, Don't Tell" is constitutional because it has a rational basis: specifically, that Congress had made findings that the open service of gays and lesbians in the military would harm unit morale and cohesion. The Ninth Circuit Court of Appeals reversed Judge Leighton's ruling and ordered a retrial under two new standards. First, the Court of Appeals directed the trial judge to apply the "intermediate scrutiny" standard, not "rational basis." Under the rational basis test Major Witt had the burden of proving that the law was unconstitutional; under intermediate scrutiny the government had the burden of proving that the law was constitutional. On remand, though, the Judge said that this change in the burden of proof made no difference in his ruling. Judge Leighton said:

September has been a busy month for YouTube on the copyright front. YouTube, which is owned by Google, had been sued in Germany and Spain for copyright infringement based copyrighted content posted by YouTube's users.

Early in September, a German court in Hamburg found YouTube liable for copyright infringement when videos of singer Sarah Brightman were posted by YouTube users. See coverage here, here, here, and here.

Individuals and groups who have an interest in a question of law that is before the Supreme Court may file a "friend of the court" brief with the permission of the Court and the parties. These amicus briefs are often very illuminating and have influenced the Court's decision in many cases. They may also be narrowly focused on a particular point of view or just plain silly. Several amicus briefs have been filed in Snyder v. Phelps, the military funeral protester case. In this post I identify the shining stars and the burnt out husks among the amici.

The "Blue Ribbon" awards go to the brief filed by 48 States and the District of Columbia on behalf of the Snyder family, and the A.C.L.U. brief on behalf of the Phelps family. (The Phelps family comprise most of the members of the protesting group, the Westboro Baptist Church of Topeka, Kansas). These two briefs admirably address the principal arguments on both sides; they are clear, concise, and persuasive. They are, in my opinion, more informative and more focused on the relevant constitutional issues than the briefs filed by the parties themselves. (Here are the petitioner's brief, the respondent's brief, and the petitioner's reply brief.) Kind of makes you wonder about the utility of the standing doctrine, doesn't it?

Supreme Court Justice Antonin Scalia has recently been arguing that the Constitution does not, in fact, bar sex discrimination. The Court has held for almost forty years that the equal protection clause of the Constitution protects women from sex discrimination. Scalia says that 'If the current society wants to outlaw discrimination by sex, you have legislatures."

Of course Congress has outlawed sex discrimination in employment (Title VII and the Pregnancy Discrimination Act) and education (Title IX), among other settings. And twenty states have amended their state constitutions to explicitly prohibit discrimination through Equal Rights Amendments.

The Log Cabin Republicans sued the United States in federal court in California asking for a declaratory judgment that the federal statute prohibiting gays and lesbians from serving openly in the military - the "Don't Ask, Don't Tell" law - is unconstitutional. On September 9 Judge Virginia A. Phillips of the Central District of California issued a ruling in favor of the group striking down the law. The plaintiffs requested the judge to enter an injunction that would have applied the court's ruling to the entire United States military, and not just the members of the Log Cabin Republicans in the military service. Yesterday, the White House announced that the Justice Department had taken steps to limit the scope of the order that the Judge might issue. This filing also kept open the government's option to appeal the judge's ruling. Many gay rights advocates have called upon President Obama not to appeal the judge's ruling, just as Governor Schwarzenegger decided not to appeal the Prop 8 decision. What should the President do?

Here is White House Press Secretary Robert Gibbs' statement about yesterday's filing:

In addition to the preemption cases described in first post in this series and the five individual rights cases described in the second post, the Supreme Court has also accepted two 11th Amendment / State Sovereign Immunity cases for review.

In 1996 in the case of Seminole Tribe of Florida v. Florida, the Supreme Court resurrected the doctrine of State Sovereign Immunity under the unlikely mantle of the 11th Amendment. The Court ruled that under that provision of the Constitution Congress was powerless to enact legislation creating a private right of action against the states in the absence of consent from the states. The Court reached that decision in spite of the fact that the text of the 11th Amendment pertains to and curtails the jurisdiction of the federal courts over lawsuits involving the states, and does not mention or concern the power of Congress to legislate regarding the states. Dissenting in Seminole Tribe of Florida, Justice Stevens criticized the majority for not following precedent:

It was not only the right of gays and lesbians to serve in the military that was at stake in yesterday's vote before the Senate; also defeated were consideration of the DREAM Act and the proposed elimination of the secrecy surrounding Senate "holds" on legislation and nominations.

The Supreme Court has agreed to decide five individual rights cases in the coming term: two freedom of speech cases, an informational privacy case, an Establishment Clause case, and an Equal Protection case.

Here are brief summaries of each of the individual rights cases that the Court has placed on its docket. In later posts I will examine these cases in more detail.

The Akron Law Career Planning and Placement Office presents its inaugural Signature Speak Series featuring motivational speaker Donald Wayne McLeod, founder of Listen Up LLC. The two-part series will be held Thursday, Sept. 30 and Thursday, Oct. 7 from 12:30-2:45 p.m. in Room 165 at The University of Akron School of Law. The program is presented free of charge, unless seeking CLE credit (4.5 hours); cost for CLE is $50. To register, visithere ; e-mail lawcppoga@uakron.edu or call ext. 8217.

This program will instruct on how to better communicate and build sincere relationships to help you achieve success in your career. Anyone involved in client development, responsible for running a law firm or corporation, responsible for running law firm or corporation, anyone who interacts with clients, judges, opposing counsel, anyone who is or ever will be looking for a job and anyone who wants to learn how to successfully network.

Professor Padfield intriguingly asks, "To What Extent Is the Roberts Court Pro-Business?" One of the most critical areas where we might find an answer is the ongoing battle between America's manufacturers and consumers (and their surrogates the insurance industry and the trial lawyers) which continues unabated into the current term of the Supreme Court. As in recent years, the Court has laden its docket with cases asking whether state lawsuits are precluded by federal law; specifically, whether federal regulatory statutes "preempt" state common law consumer claims.

More and more, it seems as if the business of the Supreme Court is ... business! In recent terms the Supreme Court has become obsessed with determining the extent to which federal statutes prohibit plaintiffs from suing manufacterers for fraud, defective design, and negligent failure to warn, all claims that arise under the common law of the states. In the recent case of Wyeth v. Levine (2009) Justices John Paul Stevens and Samuel Alito clashed over the proper understanding of preemption doctrine.

During the 2009-2010 term, the Supreme Court decided three First Amendment cases. Although in two of those cases the persons challenging the law on First Amendment grounds won, creating the impression that Freedom of Speech is on the move, careful examination of the Court's opinions reveals that the movement is retrograde.

In Holder v. Humanitarian Law Project the retreat from First Amendment principles is most easily apparent. In that case the Supreme Court ruled that the government may make it a crime to try to assist a terrorist organization to achieve its goals through non-violent means. The Anti-Terrorism and Effective Death Penalty Act prohibits anyone from offering "material support" to a terrorist organization. On its face this is a reasonable and necessary law. But the government wishes to apply this law to speech to prohibit groups like the Humanitarian Law Project from assisting terrorist organizations to apply for funding for peaceful purposes or to appear before legislative bodies and plead their grievances. Of course people must be prosecuted for terrorists acts or for aiding and abetting those acts, but to outlaw the conversion of terrorists to non-violent activities is counterproductive. The principal function of freedom of speech is that it provides the means for the peaceful resolution of disputes. Mass terrorism will end when oppressed people have the opportunity to redress what they perceive as injustice through the same mechanisms that we take for granted - access to democratic institutions, constitutional entitlement to equal treatment, and the rule of law. Those changes will come about much sooner if organizations like the Humanitarian Law Project are allowed to teach terrorist organizations how to work nonviolently within existing institutions. In this context it is well to remember Louis Brandeis' admonition, in opposition to the criminal prosecution of Anita Whitney, a Communist who advocated peaceful revolution:

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The operative fact in this case was that Atari's attorney had applied to the Copyright Office for a reproduction of Nintendo's code under the premise that it was involved in litigation and needed a copy of the program for the lawsuit. In fact, no such litigation was taking place. Because of the surreptitious nature of acquiring the code from the Copyright Office, the court found that reproductions of the unauthorized code were not fair use, despite any legitimate reverse engineering that could have taken place.

This article in the New York Times (with graphics) tells how the polarization at the Supreme Court is reflected in clerkship hires. Conservative justices hire conservative clerks who previously clerked for conservative lower court judges. The same with liberal justices. In Congress, too, moderate Republicans and Democrats are losing primaries to "true believers." Voters seem polarized as well. Are we really settling into a world in which we each believe we are simply at war with each other, each believing that we are fighting for good against evil opponents? When does reconciliation come back in style?

In a lawsuit filed yesterday in California, Hewlett-Packard (HP) has sued its former CEO, Mark Hurd, in an attempt to prevent Hurd from serving as president of and a director at HP's competitor, Oracle.

Enforcement of contractual restraints on employment are very difficult under California law. California Business and Professions Code § 16600 precludes enforcement of "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind." There are a few exceptions to this prohibition, arguably including an exception for divulging trade secrets. See Edwards v. Arthur Andersen LLP.

The University of Akron will be participating in National Constitution Day with several days of activities. Constitution Day is a national celebration of the day the U.S. Constitution was signed. The United States Congress passed legislation in 2005 making it mandatory for every institution of higher education in the U.S. to celebrate Constitution Day on or around Sept. 17th on their campuses. For a full list of UA's activities click here .

California Goveror Arnold Schwarzenegger and State Attorney General Jerry Brown have announced that they will not appeal the decision of Federal District Court Judge Vaughn Walker in the Prop 8 case. Do they have to? If not, does anyone else have standing to appeal the decision?

This article from the NY Times describes how some content owners have permitted fans to upload copyrighted TV shows to YouTube in exchange for sharing in the targeted advertising revenue generated from showing these programs on YouTube.

This is a good example of using IP to build bridges rather than using IP solely as either a sword or a shield.

One of the remarkable things about Judge Vaughn Walker's decision in the Prop 8 case is the extent to which he treats Proposition 8 as a form of gender discrimination.

Laws that deny gay and lesbian couples the right to marry obviously discriminate on the basis of gender; such laws confer a valuable legal status upon a man and a woman but deny the same benefit to two men or two women. But Judge Walker takes the argument further and explains why such laws are a classic form of gender discrimination.

A century ago Louis Brandeis filed his brief on behalf of working women in the case of Muller v. Oregon. That brief started a movement that has revolutionized how our courts analyze and interpret the law. The result has been a change in our jurisprudence from "faith-based" to "reality-based" thinking, from deontological to consequentialist philosophy, from reliance upon religion and ideology to resort to reason and social science.

In 1903 Oregon enacted a maximum hour law for women. Business interests challenged the law on the then-prevailing theory that such laws are unconstitutional because they impair "freedom of contract," which was considered to be a violation of the Due Process Clause.

In my Law and Theology seminar, the students (and I) are authoring a course blog. My latest entry is about a recent decision in the 7th Circuit on the funding of student worship and proselytizing activities by the University of Wisconsin. Check it out here.